Opinion
D073142
11-27-2018
KAREN HAYES, Plaintiff and Appellant, v. TEMECULA VALLEY UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
Wagner & Pelayes, Jacob P. Menicucci, Dennis E. Wagner and Tom Yu for Plaintiff and Appellant. Walsh & Associates, Dennis J. Walsh and Alice Chung for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIC1512178) APPEAL from a judgment of the Superior Court of Riverside County, Angel M. Bermudez, Judge. Affirmed in part and reversed in part. Wagner & Pelayes, Jacob P. Menicucci, Dennis E. Wagner and Tom Yu for Plaintiff and Appellant. Walsh & Associates, Dennis J. Walsh and Alice Chung for Defendant and Respondent.
Karen Hayes sued the Temecula Valley School District (District), alleging her demotion from middle school principal to middle school teacher violated the Fair Employment and Housing Act (FEHA) because it was motivated by unlawful retaliation, gender discrimination, and/or age discrimination. (Gov. Code, § 12940, subds. (a), (h).) She also claimed the District violated the FEHA because of alleged sexual/gender harassment by several male teachers and by failing to protect her from sexual discrimination and harassment. (§ 12940, subds. (j), (k).) The District successfully moved for summary judgment on all causes of action. Hayes appeals.
Unspecified statutory references are to the Government Code.
We affirm on the discrimination causes of action (retaliation, age, gender). The District proffered evidence showing a legitimate reason for the reassignment, and Hayes did not submit evidence supporting an inference that the reassignment was in retaliation for her prior complaints, or based on her age or gender.
However, we reverse on Hayes's gender harassment and failure-to-protect claims. Viewing the entire summary judgment record, there are triable issues of fact as to whether one or more male District employees created a hostile working environment based on Hayes's gender that was so pervasive that it altered the conditions of her employment. The fact the claimed abusive conduct often took the form of work-related grievances does not, as a matter of law, preclude recovery on the gender harassment cause of action. On the failure-to-protect claim, the record contains evidence the District was aware of complaints that Hayes and other female employees were "targeted due to their gender," but failed to take reasonable steps to prevent this continuing conduct.
FACTUAL AND PROCEDURAL BACKGROUND
Under the applicable review standard, we summarize the factual record in the light most favorable to Hayes, the nonmoving party in the summary judgment proceedings. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 81 (Light).) We accept the truth of Hayes's evidence, but not conclusory or speculative assertions unsupported by the admissible evidence. Some of the evidence will be described in more detail when relevant to the legal issues raised by the parties.
FACTUAL SUMMARY
Hayes served as a principal of Margarita Middle School beginning in 2002. During the next 12 years, she received positive performance reviews and prestigious awards for her leadership abilities and administrative skills. Throughout her tenure, she was highly respected and viewed favorably by many teachers, parents, and students.
Beginning in 2010, Hayes had numerous problems with three male teachers: Ray F., Steve C. and Jesus A. These teachers repeatedly challenged Hayes's administrative decisions, and filed numerous frivolous complaints for the sole purpose of harassing her and seeking her removal as principal. One or more of these teachers also badgered many female teachers and school staff members by constantly challenging their work decisions and disagreeing with their methods and activities. The male teachers asserted these complaints in a belligerent and intimidating manner, including yelling or raising their voices at Hayes and other female employees.
Hayes and other employees reported the "harassment" to District officials, including Tim Ritter, the District's superintendent (Superintendent); Henry Voros, the District's former assistant superintendent; and Joe Mueller, the human resources director. Although these officials supported Hayes, the District did not take any effective action to prevent the continuing inappropriate conduct by the male teachers.
In December 2013, Hayes sent a lengthy email to District officials including the Superintendent and human resources director Mueller. The email was titled "Fear for My Site's Safety and Mine As Well." The email described Hayes's belief that teacher Ray was attempting to have her removed as principal by making false accusations against her, and stating that Ray's "aggressive and hostile harassment . . . frighten[s]" her. She said that she was concerned "about his anger and frustration toward me" and was worried that he would "go 'postal.' " Hayes said she appreciated the District's past support in response to Ray's many previous complaints.
In this email, Hayes also detailed the latest incident in which Ray accused her of wrongfully telling a parent that he had contacted child protective services regarding suspected abuse, and Ray asked law enforcement officials to have her arrested. She explained that after the law enforcement officials had spoken with her and Ray, they made clear to Ray that they were not going to arrest her. She said the law enforcement officials "decided that Ray is acting a little crazy and unstable and so they are going to give me extra protection." In the email's final paragraphs, Hayes stated:
"I am not one to be fearful or whine about issues, but at this time I am fearful of what Ray . . . may do to me, my students, and my staff. Through the years he has escalated the magnitude of his 'attacks' on me. He is attempting to destroy my character and my livelihood, which is bad enough, but I now fear for my personal safety. His fixation on 'getting rid of me' scares me; I feel he has become obsessed with me. Though there are 4-5 other females on this
campus that have felt harassed by him, his main target has definitely been me! Since he never 'attacks' men, we are wondering if he has a sexist issue only with females. The deputies have made some recommendations to me that I will follow. I won't be staying late at work any more because that would require walking in the dark or walking to my car by myself. . . . I will (along with my office staff) be more cognizant of his presence in the front office, especially if he nears my office. They've asked me to keep their phone numbers handy so I contact them right away. [¶] I am notifying you of his recent actions and its impact on my feeling safe at school. Please help me to deal with this situation."Although the District claims it investigated the incident, it took no action in response to this email to prevent or deter the claimed harassing conduct.
About 11 months after sending this email, in November 2014, Hayes was approached by a female teacher, Jennifer, who was crying because of an incident with Ray. According to Hayes, Jennifer said that Ray was "harassing" her about certain student placements, and "violently slammed his fist on the desk" while repeatedly yelling " 'This is BS!' " in a room "full of middle school students." Jennifer also said that Ray had sent her "harassing" emails. Jennifer indicated she wanted to file a complaint against Ray.
After the District's human resource directors (Mueller and Tiffany Martinez) approved Hayes performing an investigation of this incident, Hayes conducted the investigation, and found some of Jennifer's complaints against Ray to be substantiated. On December 8, 2014, the District's human resources department gave Hayes permission to "write up a verbal warning regarding [Ray's] inappropriate harassment of [Jennifer]." Ten days later, Hayes emailed Ray "the verbal warning." The next day, Ray filed a complaint against Hayes, asserting various grievances about her administrative decisions including teaching assignments and management of classroom funds.
At about the same time, in November or December 2014, Hayes approached the Superintendent and the assistant superintendent Jodi McClay, stating she "had enough of" the " 'harassment and abuse' " at her school site and she "couldn't take it anymore" and asked for a letter of recommendation because she intended to seek an administrative position at a different school district. Hayes said, "These men [referring to Ray, Steve, and Jesus] are trying to destroy my career. I need to leave the [D]istrict." The District officials said they understood, and agreed to write recommendation letters. McClay said she was sorry "with what you're having to put up with" and would prefer not to " 'lose' " Hayes because she is "one of the best administrators in the [D]istrict." McClay asked whether Hayes wanted to be moved into the District office. Hayes declined the offer, stating, "as long as I'm in the same [D]istrict, it's not going to help." Hayes said that although she understood Ray was a tenured faculty member, "[a]t the very . . . very, very least, [the District could] have a conversation with him about his abusive behavior toward the females on the campus . . . ." She also told another assistant superintendent that "I couldn't take the harassment anymore, that the men that were picking on the women in my school were driving me out of the district . . . ."
On December 17, 2014, the Superintendent wrote a glowing letter of recommendation for Hayes, stating that Hayes "is among the finest educators I have worked with and exemplifies the instructional leadership that any district would want in their district administrators." After detailing her skills and experience, the Superintendent opined that Hayes "is an exceptional educator who has the experience, skill, and knowledge to lead a district instructionally. She has proven herself as a [school principal]. . . . It is without hesitation that I strongly endorse her as a candidate for a position as an administrator in your district and ask that you give her application your careful consideration."
McClay and another District official also wrote positive letters about Hayes's administrative abilities. McClay said: "Hayes is an outstanding leader," who "gives 200% for the good of her students, school, and the district at-large. . . . While we would be devastated to lose her on our team, she will undoubtedly continue to make a remarkable difference in the lives of students, staff, and families."
The next month, in January 2015, Hayes attended a meeting of middle school principals that was also attended by McClay. At the meeting, Hayes "indicated that [she] did not feel supported by the District with respect to the hostile work environment created by the gender-based harassment and discrimination occurring at my site." At the next meeting, the Superintendent "angrily" told the principals they were ungrateful, but there is no evidence this statement was connected with Hayes's complaint.
At about the same time, in early 2015, Ray submitted a Public Records Act request (§ 6250 et seq.) to the District for documents related to Jennifer's November 2014 complaint and Hayes's investigation of the complaint, including Hayes's emails with other teachers. On about March 10, 2015, while gathering the responsive records, human resource director Mueller reviewed Hayes's email communications and concluded they showed she had not been objective and impartial in investigating Jennifer's complaint. He found the emails to be highly unprofessional, particularly because they reflected that Hayes had showed favor toward Jennifer and bias against Ray during the investigation. We will describe the email communications in more detail below.
Mueller immediately showed the emails to the Superintendent. After his evaluation of the emails, the Superintendent decided to provide Hayes with notice of possible release and reassignment to a teaching position for the next year because he had lost confidence in her ability to serve as middle school principal. The next day, on March 11, the Superintendent and human resource director Mueller met with Hayes and gave her a reassignment notice pursuant to Education Code section 44951, which requires a school district to provide notice to a school administrator by March 15 of a no-cause reassignment for the following school year. (See Hayes v. Temecula Valley Unified School Dist. (2018) 21 Cal.App.5th 735, 739-740, 747-748 (Hayes I).) A no-cause reassignment after this deadline is invalid. (Ed. Code, § 44951.)
At this March 11 meeting, the Superintendent also gave Hayes a letter stating that "effective today" she was being placed on "paid administrative leave until further notice." The letter said the purpose of the leave was "to allow the District to conduct an investigation into allegations of misconduct." At this meeting, Hayes told the Superintendent and Mueller they had "failed to support [her] in dealing with [Ray's] gender harassment towards me and other female teachers." She also "reminded" them that the "harassment against the women staff at [the middle school] had been ongoing for several years and was never addressed by the District."
The next morning, on March 12, Hayes asked for clarification of her choices, including whether she was being terminated. Later that day, the District sent a lengthy letter to Hayes explaining her options. The letter stated the District had given Hayes an Education Code section 44951 notice of reassignment during the next school year, and had not yet decided whether to pursue a for-cause reassignment. The District said that if it decided to pursue the for-cause reassignment, Hayes would be entitled to notice of charges and an open hearing before the Board.
The next morning (March 13), Hayes's attorney sent an email to the District requesting an open hearing regarding her alleged misconduct and asked for all documents being used to support Hayes's termination.
Later that day, the District's counsel wrote to Hayes's counsel stating that Hayes was not being terminated, and instead she was being recommended for a no-cause release from her administrative position and reassignment to a teaching position. The letter stated in part: "The administration has decided not to pursue the more aggressive, for-cause procedure and thereby avoid the necessity for a presentation of any allegations and a formal statement of charges, and instead to recommend only the no-cause release and reassignment due to general lack of confidence, etc. Accordingly, there will be no presentation of any specific allegations (complaints or charges) against Ms. Hayes . . . and her rights under [section] 54957 will not be triggered." (Hayes I, supra, 21 Cal.App.5th at pp. 742-743, italics omitted.)
That same day, human resources director Mueller prepared an internal report summarizing his investigation of Hayes's conduct that led to the Superintendent's decision to propose a no-cause reassignment. In the report, Mueller said that while complying with Ray's public records request, Mueller "became aware of several unprofessional emails between [Jennifer] . . . and . . . Hayes."
Mueller described the emails as follows.
"On November 21, 2014, . . . Hayes sent an email to [Jennifer] stating 'Hi Jen, Would you like to file your formal complaint to me today? If so, I can pick it up or you can put it in an envelope and have a student bring it up to me. I am surprised we haven't heard anything from [a teacher's union official] about Ray's complaint regarding Pride groups. He's been back a week and so far nothing from the union . . . hmmmmm.'
"On Monday December 1, . . . Hayes notified Ray . . . via email that a complaint had been filed against him. In part, the email stated, 'A complaint has been brought to me regarding you.'
"On Tuesday December 2 . . . , Hayes sent an email to Jennifer . . . inquiring about whether or not she had completed the formal complaint form. She also provided suggestions to [Jennifer] on how to interact with the [union] president. The email states, 'Did you complete the complaint form? If so, I can't find it on my desk. If not, do you need a blank form to write on? I've been thinking about this and I think once you have the formal complaint form to me, you should tell [the union representative] that you would like him to represent you since you were the offended party. I don't know what he'll do, but you are certainly entitled to union representation every bit as much as Ray is. Maybe he'll try to represent you both. What do you think of this idea?'
"On Wednesday December 3, . . . Hayes sent an email to Jennifer . . . , which notified her that a meeting date with Ray and [the union representative] had been scheduled. [Hayes] also stated, 'You don't need to be there unless you want to be. I do need the "Complaint Form—Step 1" form completed by you though. It only takes a few minutes to complete. Be sure to sign it and back date it from your original complaint date. If you can get that to me ASAP, I'd appreciate it as I need to prepare for this meeting. Thanks Jenny!'
"On December 3, . . . Jennifer [responded by email to Hayes]. The email reads, 'Oh joy! I think I'll pass. Haha! Sending up a folder to you now. Can you check and see if I did it right?' At 10:19 AM on the same day, [Hayes] responded back, 'Wish I could "pass! [Smiley Face Animation]" If he tries to talk to you in the meantime, it's up to you how you want to handle him. He has a tendency to "bully" females, so please be on your guard and feel free to tell him to stop. No female on this campus needs to passively take his abrasive behavior. Can't wait till Friday!' [Sad Face Graphic].After this description of the emails, Mueller concluded:
"On December 3 . . . Hayes responds to [Jennifer's email] stating, 'I'm going to try and present your case and ask that Ray leave you alone and treat you [with] respect in the future . . . period. If [the union representative] tells him that he agrees with you and that Ray needs to do the "Remedies Sought" then I think it's done with. [¶] As for representation, contact [the union representative] and ask him if you need representation. If he says "[Hayes] will be your representative," state that even though I will do my best to represent you, you are a bargaining member and the union should represent you. I'm curious as to what [the union representative] will say . . . . It will be interesting to see how it spins it. Would you bc[c] me so that I can see his response too.' [¶] 'This may be all over Friday, but let's lay all of our cards out on the table. I'm there for you Jenny . . . [Twinkle Star Animation.]'
"On Friday December 5 . . . , Hayes emailed Jennifer . . . a detailed account of her meeting with Ray . . . and [the union representative]. This email [identifies] 16 statements made by Ray . . . . While some of these statements appear to be sarcastic and demonstrate unprofessional communication between a supervisor/investigator and complainant, most concerning is the statement contained in item 4, which states, '4) He contends I wrote the words in the complaint (I said you wrote them without my help . . . sorry I couldn't say that you copied my words)[.]'
"On Sunday December 7, . . . Jennifer . . . responded to [Hayes's December 5] email . . . by addressing each of the 16 points [made by Ray that Hayes] had . . . shared with her in the previously mentioned December 5th email. On December 8, 2014, [Hayes] responds to this email by stating, 'Touche! [Smiley Face Animation].' "
"The documentation outlined above demonstrates that . . . Hayes grossly mishandled the investigation of [Jennifer's] complaint . . . . [Hayes's] unprofessional communication with the complainant and failure to maintain confidentiality demonstrates a lack of leadership. Furthermore, by disclosing sensitive complaint information to the complainant throughout the handling of the complaint investigation, it appears that Ms. Hayes did not intend to provide [Ray] with an unbiased due process [review].
"[One of] Ms. Hayes's email[s] [also] indicates she was dishonest about assisting the complainant in writing the complaint. Because this email is subject to mandatory public disclosure, it is likely to result in another complaint in response. Similarly, [Hayes's] comments about the teachers' union create potential liability for an unfair labor practice charge. The way [Hayes] handled the investigation reflects negatively on Ms. Hayes'[s] credibility, professionalism and reputation. The likely effects are significant harm to the reputation of the District and further distrust issues amongst the District's employees and administrators."
On March 17, the Board held its meeting and, in closed session, voted to adopt the Superintendent's recommendation to release and reassign Hayes without cause at the conclusion of the 2014-2015 school year.
Superior Court Actions
About two months later, in May 2015, Hayes petitioned for a writ of mandate against the District seeking to set aside the Board's reassignment decision on procedural grounds. (Hayes I, supra, 21 Cal.App.5th at p. 744.) Hayes argued: (1) the March 11 notice violated applicable statutes because it was not authorized by the Board before March 15; (2) she was denied her due process rights because she was not provided notice and an opportunity to respond to charges regarding her alleged misconduct; and (3) her placement on paid administrative leave violated her due process rights, statutes, and District regulations. (Id. at p. 738.)
Several months later, in October 2015, Hayes filed a separate civil action (the case at issue here) against the District asserting that her reassignment violated the FEHA because it was motivated by unlawful reasons, including retaliation for her sexual and gender harassment complaints, her gender, and her age, and that the District failed to prevent this discrimination and retaliation. As later amended, Hayes's complaint also alleged a sexual/gender harassment cause of action.
While these actions were pending, the District continued its investigation of Hayes's conduct, primarily by reviewing all of Hayes's earlier emails. At the time, Hayes was working as a teacher at another District school. In May 2016, the District closed its investigation, and delivered its final investigation report to Hayes. In the report, the District found Hayes had violated applicable performance standards, including by failing to resolve disputes in a neutral and unbiased manner, creating a culture of favoritism and divisiveness at the middle school, and using the District's email system for nonwork-related communications.
The superior court thereafter entered judgment denying Hayes's writ of mandate petition. Hayes appealed from that judgment. While that appeal was pending, in June 2017, the District moved for summary judgment and/or summary adjudication in Hayes's FEHA action. The District argued the undisputed evidence showed Hayes could not establish a prima facie case of retaliation or discrimination; and even if Hayes established a prima facie case, the District's reason for the reassignment (her inappropriate handling of the investigation of Jennifer's allegations against Ray) was legitimate and nondiscriminatory, and there was no evidence showing the reason was pretextual and/or based on her gender, age, or retaliation. The District also argued there was no evidence of harassment based on Hayes's gender or any form of sexual harassment.
In support, the District submitted declarations by several District officials, including human resource director Mueller and former assistant superintendent Voros, and hundreds of pages of deposition testimony, including lengthy excerpts of Hayes's deposition testimony. We shall describe the relevant and admissible portions of this evidence in the Discussion section below.
In response to the summary judgment/summary adjudication motion, Hayes claimed, and submitted her declaration stating, that the three male teachers (particularly Ray and Steve) had "harassed" her and other female teachers since 2010; she and the other teachers had repeatedly complained about the harassment to the District; and the District did not address the harassment and instead allowed these male teachers to continue to teach in District schools and had refused to reassign Ray to another school. She argued that the District removed her as principal because of her complaints about the harassment, and the District's proffered reason for the reassignment (lost confidence based on its review of her emails regarding the investigation of Jennifer's 2014 complaint) was "false" and "contrived" because she was not biased and did not assist Jennifer in writing the complaint. She also argued her reassignment was motivated by gender and age discrimination, relying on evidence that she was replaced as principal by a 48-year-old male. We shall describe the relevant and admissible portions of Hayes's supporting evidence in the Discussion section below.
After a hearing, the court sustained some of the District's objections to portions of Hayes's declaration. The court then granted the District's summary judgment motion, finding the District met its burden to show Hayes would be unable to establish the elements of her causes of action, and Hayes did not meet her burden to show a triable issue of fact on the asserted claims. Hayes filed a notice of appeal.
As Hayes does not challenge this evidentiary ruling on appeal, we are bound by the court's ruling. (See Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074.) We thus consider in this opinion only the portions of Hayes's declaration ruled admissible by the superior court. We offer no opinion whether the court's evidentiary rulings were proper for purposes of any later proceedings.
Before briefing on the summary judgment appeal began, we issued our published opinion in Hayes's writ of mandate case, affirming the trial court's determination. (Hayes I, supra, 21 Cal.App.4th 735.) Interpreting Education Code section 44951, we held a governing school board need not preapprove a March 15 reassignment notice for the notice to be valid. (Hayes I, at pp. 747-754.) We also rejected Hayes's contention that the no-cause reassignment was invalid because there was evidence showing the District used this procedure to avoid the need to justify its decision at a public hearing. (Id. at pp. 754-756.) We explained: "[E]ven assuming Hayes is correct that the District made the decision to reassign Hayes 'without cause' to avoid a public hearing or because it did not believe there were sufficient facts to prove a misconduct case under the specific statutory standards . . . , there is nothing improper about this reasoning. Because a principal's position is at will, a school district need not establish the principal engaged in the type of misconduct specified in the 'for cause' termination statutes to trigger a school district's right to reassign a principal to a teaching position. 'Compliance with [the statutes] for removing a principal is simple. It does not require a finding of cause, may be based upon no more than a personality conflict, and does not entitle the affected administrator to a hearing.' . . . Further, a school district has the discretion to determine when and whether to seek disciplinary action, and the form of any necessary response to perceived work performance issues." (Id. at p. 755, citations omitted.) We also rejected Hayes's challenges to the Superintendent's decision to place her on paid administrative leave. (Id. at pp. 756-758.)
The parties then filed their appellate briefs in Hayes's appeal in the FEHA case. We address the contentions in these briefs below.
DISCUSSION
I. FEHA and Summary Judgment Review Standards
Each of Hayes's causes of action seek relief under the FEHA. The FEHA prohibits an employer from taking an adverse action against an employee because of gender or age, or in retaliation for specified protected activity. (§ 12940, subds. (a), (h).) It also prohibits workplace harassment based on a protected category. (§ 12940, subd. (j)(1).) The FEHA seeks "to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons." (§ 12920.5.) The Legislature mandated courts to broadly construe the statutory provisions to protect and safeguard the right to employment without discrimination. (§§ 12920, 12993, subd. (a); Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 243; Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1180 (Husman).)
Summary judgment is proper if "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) We review a summary judgment de novo. (State of California v. Continental Ins. Co. (2017) 15 Cal.App.5th 1017, 1031.) "We liberally construe the evidence in support of the party opposing summary judgment [citation], and assess whether the evidence would, if credited, permit the trier of fact to find in favor of the party opposing summary judgment under the applicable legal standards." (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1346.) "We are not bound by the trial court's reasons for granting summary judgment because we review the trial court's ruling, and not its rationale." (Avidity Partners, LLC v. State of California (2013) 221 Cal.App.4th 1180, 1192.)
Under these review standards, we first consider Hayes's contentions that the court erred in granting summary judgment on her discrimination claims. We then evaluate Hayes's contentions regarding her harassment and failure-to-protect claims. As explained below, we conclude the court properly granted summary adjudication on each of the discrimination causes of action, but not on the harassment and failure-to-protect claims.
II. FEHA Discrimination Claims
A. Legal Standards
In analyzing FEHA discrimination claims, California courts use the three-stage burden-shifting approach articulated in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2 (Reid); Husman, supra, 12 Cal.App.5th at p. 1181; Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307 (Sandell).) The McDonnell Douglas test "reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354 (Guz); Husman, supra, 12 Cal.App.5th at p. 1181.)
Under the McDonnell Douglas test, a plaintiff establishes a prima facie case for unlawful discrimination by providing evidence that "(1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action . . . , and (4) some other circumstance suggests discriminatory motive." (Guz, supra, 24 Cal.4th at p. 355.) Once the employee satisfies this burden, discrimination is presumed and "the burden . . . shifts to the employer to show that its action was motivated by legitimate, nondiscriminatory reasons. [Citation.] A reason is ' "legitimate" ' if it is 'facially unrelated to prohibited bias, and which if true, would thus preclude a finding of discrimination.' [Citation.] If the employer meets this burden, the employee then must show that the employer's reasons are pretexts for discrimination, or produce other evidence of intentional discrimination." (Reid, supra, 50 Cal.4th at p. 520, fn. 2.)
The courts have explained the manner in which this test applies in summary judgment proceedings. (Sandell, supra, 188 Cal.App.4th at p. 309.) "In the context of summary judgment an employer may satisfy its initial burden of proving a cause of action has no merit by showing either that one or more elements of the prima facie case 'is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors.' " (Husman, supra, 12 Cal.App.5th at p. 1181.) If a defendant moves for summary judgment based on "a showing of nondiscriminatory reasons for the [adverse employment action], the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the [adverse action]." (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.)
Once the employer meets this initial burden, the presumption of discrimination no longer applies and the summary judgment burden shifts to the employee to show intentional discrimination. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109 (Loggins); accord, Light, supra, 14 Cal.App.5th at p. 91.) To satisfy this burden, the employee must "demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action." (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.)
Under these standards, "an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory." (Guz, supra, 24 Cal.4th at p. 361, fn. omitted.) It is not enough for an employee to make a bare prima facie showing or to simply deny the credibility of the employer's witnesses or to speculate as to the motive. (See Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004 (Hersant); Compton v. City of Santee (1993) 12 Cal.App.4th 591, 595-596.) Rather, the employee must produce "substantial responsive evidence" demonstrating the existence of a material controversy as to a discriminatory or retaliatory intent. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 862 (Serri); University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1039.) " ' "Circumstantial evidence of ' "pretense" must be "specific" and "substantial" . . . to create a triable issue with respect to whether the employer intended to discriminate' on an improper basis." ' " (Husman, supra, 12 Cal.App.5th at p. 1182.)
We apply these standards to each of Hayes's alleged discrimination claims: retaliation, gender, and age.
B. Retaliation Cause of Action
Under the FEHA, an employer is forbidden from taking an adverse employment action "because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (§ 12940, subd. (h).) To establish a prima facie case of unlawful retaliation, the "plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Light, supra, 14 Cal.App.5th at p. 91.)
In moving for summary judgment, the District agreed it subjected Hayes to an adverse employment action (her reassignment from principal to teacher). But it argued it was entitled to summary adjudication on this claim because the evidence showed Hayes could not meet her burden to establish the other two elements of her prima facie case and/or the District's evidence established a legitimate reason for the reassignment. We assume for purposes of this opinion that Hayes could establish her prima facie case of retaliation. There was evidence showing that she complained to District officials about gender harassment in December 2014 and at the January 2015 principal's meeting. About two or three months later, she was removed from her principal position. However, we conclude the District met its summary judgment burden by establishing a legitimate, nondiscriminatory reason for the reassignment.
The evidence shows that although Hayes was a popular and successful principal at the middle school, she had difficulties with several male teachers in 2010 through 2015. The male teachers filed numerous complaints against her. The District's human resource office worked with Hayes to handle and resolve those complaints, and consistently supported Hayes's decisions.
But the evidence also shows the District approved Hayes's request to conduct an investigation of Jennifer's November 2014 complaint, and Hayes admitted at her deposition that she understood she was required to be fair and neutral in the investigation. After Hayes conducted the investigation and found Ray had acted improperly with respect to the November 2014 incident, Ray made a public records request for Hayes's school emails with other teachers. In responding to the request, the District's human resources director for the first time reviewed Hayes's emails on about March 10, 2015, and found the email communications showed she had violated her professional duties to be objective and impartial in the investigation. He concluded the emails showed that Hayes had displayed favor toward Jennifer and bias against Ray. The Superintendent agreed with these conclusions and lost confidence in Hayes's ability to lead and continue as principal.
In support of its summary judgment motion, the District submitted copies of the emails between Hayes and Jennifer pertaining to Hayes's investigation of Jennifer's November 2014 complaint. In the emails, Hayes made statements showing that she was not truthful in the investigation and was strongly biased in Jennifer's favor. She told Jennifer that she hoped Ray would not show up at the first scheduled meeting with the union representative so that she and Jennifer could "talk to him" on their own so he could hear "our side of the 'Ray saga!' " She also provided specific guidance to Jennifer regarding the content of her complaint and how she should communicate to the parties involved, including her union representative. In one email to Ray, Hayes indicated that a formal complaint had been made against him, but her emails show that Hayes was aware that she had not yet received the written complaint from Jennifer. Hayes then told Jennifer to complete the form, and to "sign it and back date it from your original complaint date." The emails also make clear that Hayes provided Jennifer with specific language to be included in the "remedies sought" complaint section. In her email to Jennifer on December 5, 2014, Hayes said that Ray " 'contends I wrote the words in the complaint (I said you wrote them without my help . . . sorry I couldn't say that you copied my words).' " (Italics added.)
On our independent examination of the record, these emails support the District's position that Hayes had conducted the investigation inappropriately, including showing bias and favoritism. The emails show that Hayes took Jennifer's side in the investigation before it even began, guided her communications with her union (including a request that she be blind-copied in a communication between Jennifer and her union representative), and offered to "present your case" for Jennifer in the meeting with the union representative. Hayes gave her own opinions about the matter before completing the investigation. She also shared detailed information regarding Ray's contentions in the confidential meeting without letting Ray know she was doing so.
The emails support that the District had a legitimate, nonretaliatory ground to decide to reassign Hayes from the principal position to a teacher position. Thus, the District satisfied its summary judgment burden, and the burden shifted to Hayes to prove intentional retaliation. (See Husman, supra, 12 Cal.App.5th at pp. 1181-1182.)
In arguing that she met this burden, Hayes acknowledges that she did not present direct evidence of retaliatory motive or pretext, but argues that she presented a " 'convincing mosaic of circumstantial evidence' " establishing retaliation. We discuss this circumstantial evidence below.
First, Hayes states the "temporal proximity between [her] voicing her concerns as well as the concerns of others [in December 2014 and January 2015] and her release in March 2015 suggests retaliatory intent." However, as this court recently reiterated, "a mere temporal relationship between an employee's protected activity and the adverse employment action, while sufficient for the plaintiff's prima facie case, cannot create a triable issue of fact if the employer offers a legitimate, nonretaliatory reason for the adverse action." (Light, supra, 14 Cal.App.5th at p. 94; accord Arteaga v. Brink's, Inc (2008) 163 Cal.App.4th 327, 357; Loggins, supra, 151 Cal.App.4th at pp. 1112.) This is particularly true where, as here, there was an intervening event (the undisputed evidence regarding the discovery and review of the emails) that undermines any fair causal connection between the complaints and the adverse action.
Second, Hayes argues the District's reasons for the assignment were "false" and "contrived." Although a false reason for an adverse action can provide evidence of discriminatory intent (see Serri, supra, 226 Cal.App.4th at p. 863), our review of the record shows that Hayes did not present facts showing that the District's stated reason for the reassignment was false or contrived. Hayes argues that she did not write, or assist Jennifer with, her formal complaint, nor did she suggest the specific relief that Jennifer should request in her complaint. Hayes relies on her own deposition testimony and Jennifer's deposition testimony in which both deny that Hayes assisted Jennifer with her complaint. In particular, Hayes directs us to evidence that Jennifer denied that Hayes "either wrote a grievance on my behalf or forced me to write the grievance," and said that when she met with Mueller after he had reviewed the emails, "I think he wanted me to say that [Hayes] wrote the words for my grievance." Jennifer testified that she asked for Hayes's advice because she was her immediate supervisor and she (Jennifer) had never been part of a grievance before, and that Hayes "counseled [her] in a professional manner." Jennifer testified that she believed Hayes was acting in a neutral manner.
Hayes argues that this evidence "indicates [the District's] proffered reasons are illegitimate and pretextual." We disagree. The District's determination was based on Hayes's emails. Hayes admitted she wrote the emails and that the emails accurately reflected her own words. These emails indisputably reflect that Hayes prejudged the validity of Jennifer's complaint; disclosed many of Ray's confidential statements; and "wrote" some of the language used in Jennifer's complaint. The fact that Hayes and Jennifer now deny these facts or believe the District's conclusions were unjustified does not show a triable factual issue regarding the truth of the District's justification for the reassignment decision or show the District's actions were in retaliation for Hayes's prior complaints.
Third, Hayes argues "an inference that an employer is concealing its true motive may arise when the employer has given shifting, contradictory, uninformed, or factually baseless justifications for its actions." This assertion does not advance Hayes's position because there was no evidence the District gave "shifting, contradictory, uninformed, or factually baseless justifications for its actions." From the beginning, the District took the position that it had lost confidence in Hayes serving as middle school principal based on a review of her emails, which it found reflected unprofessionalism, bias, and favoritism. Hayes does not challenge that the District consistently articulated this reasoning, and instead focuses on the process by which she was reassigned. Specifically, she discusses the fact that the District's initial letters were unclear and contradictory whether she was being reassigned under for-cause statutory procedures (requiring a hearing) or under no-cause statutory procedures (under which she had no right to a hearing), and claims the District's ultimate decision to utilize the "no cause" procedure was based solely on its desire to deny her a hearing on the charges and thus showed retaliation.
However, as we explained in Hayes I, there was nothing improper about the District's decision to use the no-cause procedure after first giving notice that it had not yet decided whether to use the for-cause or no-cause procedure. (See Hayes I, supra, 21 Cal.App.5th at p. 755.) Because a principal's position is at-will, a school district need not establish the principal engaged in the type of misconduct specified in the "for cause" termination statutes to trigger a valid reassignment. (Ibid.) To show unlawful retaliation under the FEHA, the plaintiff must show the employer was motivated to retaliate for protected conduct; and this showing is not satisfied merely because the employer elected to reassign an employee through an appropriate statutory procedure. The District's decision to use the no-cause procedure does not logically support a conclusion that the stated reasons for the reassignment were retaliatory.
Fourth, Hayes contends that "deviations from an employer's own policies allow an inference that an improper motivation was in play." Again, we agree with this principle, but find it is factually unsupported in this case. Hayes asserts that the District deviated from its normal policy of seeking authorization from the Board before issuing a no-cause reassignment notice under Education Code section 44951. However, board preapproval is not required before a school district can issue a "no cause" reassignment notice before the March 15 statutory deadline date, and the undisputed facts show there was insufficient time following the March 11 discovery of Hayes's emails to seek Board approval before the March 15 deadline. (See Hayes I, supra, 21 Cal.App.5th at pp. 747-754.) Under these circumstances, it is not reasonable to infer retaliatory motive from the fact that the District gave the March 15 notice on March 11 without first seeking Board approval. Similarly, the fact the District gave contradictory information that the investigation was completed in March, but then continued to investigate Hayes's actions during the next school year (by reviewing additional emails and seeking to interview Hayes) does not support a finding that the District retaliated against Hayes for her prior complaints.
Although the evidence shows it was theoretically possible to call a special meeting before March 15 (moving the March 17 meeting ahead by three days), there was no evidence that a special meeting was required or would have been practical or consistent with the Board's general practice.
Fifth, Hayes argues, and we agree, that pretext can be inferred by the employee's positive work performance before the adverse action. (See Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479.) The evidence establishes that throughout her tenure as middle school principal, Hayes was highly respected by many in the school community, and she received positive performance reviews and prestigious awards. However, these facts do not provide substantial evidence of pretext necessary to successfully oppose the summary judgment motion. The undisputed evidence established the District had been unaware of Hayes's unprofessional conduct until Mueller reviewed the emails between Hayes and Jennifer on or about March 10, 2015, in response to Ray's Public Records Act request. Before that time, in December 2014, District officials wrote highly favorable reviews about her work, in direct response to Hayes's complaints about the conduct and behavior of Ray and the two other male teachers. However, after reviewing Hayes's emails in March 2015, the District lost confidence in Hayes's ability to serve as principal of the middle school. Under these circumstances, the fact that Hayes had previously received favorable reviews for her work did not support a reasonable inference that she was reassigned based on her complaints. Because the grounds for the reassignment were not known until the emails were reviewed, Hayes's prior positive performance reviews do not logically show retaliatory intent.
Sixth, Hayes argues that subjective reasons for an adverse action (such as " 'lost confidence' ") must be carefully scrutinized " 'because such evaluations are particularly "susceptible of abuse and more likely to mask pretext," ' " citing Liu v. Amway Corp. (9th Cir. 2003) 347 F.3d 1125. We agree with this general principle, but it does not change the result here. In this case, the loss of confidence was tied to a specific documented event (the District's review of Hayes's emails) and therefore the District's "subjective" reasoning does not support an inference of pretext. Under appropriate circumstances, evidence that an employer lost confidence in an employee can provide a legitimate basis for an adverse action and negate a claim of retaliatory intent. (See Serri, supra, 226 Cal.App.4th at p. 861.)
Finally, in her appellate reply brief, Hayes raises a new argument: she contends her role as a neutral investigator in responding to Jennifer's November 2014 complaint constitutes " 'protected activity' " sufficient to ground a FEHA retaliation claim. She forfeited this argument by failing to raise it in her opening brief. (Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 290, fn. 2.) In any event, the argument is unavailing. Hayes relies on Labor Code section 1102.5, subdivision (b) (as amended in 2014), which prohibits an employer from retaliating against an employee for reporting an employee's reasonable belief that unlawful conduct has occurred, "regardless of whether disclosing the information is part of the employee's job duties."
Because Hayes does not explain or develop her argument that this statute applies to her situation, the argument is waived. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Moreover, to the extent that Hayes is suggesting an employer cannot require an individual investigating a dispute between two employees to be neutral and unbiased during the investigation because that rule would somehow violate the whistleblower retaliation statute, we reject this novel proposition.
Viewed singly or in combination, Hayes's proffered circumstantial evidence does not support a reasonable conclusion that she was reassigned to a teacher position in retaliation for her complaints about gender discrimination and/or harassment.
C. Gender Discrimination
Assuming Hayes could establish a prima facie case of gender discrimination (she was a female; she was qualified for the position; she suffered an adverse employment action; another circumstance suggested discriminatory motive) (see Guz, supra, 24 Cal.4th at p. 354), the District met its summary judgment burden on the gender discrimination cause of action by presenting a legitimate basis for the reassignment: the fact that Hayes acted with bias and was unprofessional in her investigation of Jennifer's complaint against Ray. Thus, the burden shifted to Hayes to establish circumstances suggesting the reassignment was based on her gender.
On our review of the entire record, there is no evidence that the District reassigned Hayes to a teaching position because she is a woman. Hayes does not point to any such evidence. Instead, she devotes most of the gender discrimination portion of her appellate briefs to discussing harassment by her subordinates (the three male teachers) against herself and other school employees. We shall discuss this evidence later when addressing Hayes's harassment claim. But for purposes of the discrimination claim, there is no evidence supporting that the District officials made the decision to reassign Hayes to a teaching position because she is a woman. Thus, the court properly granted summary adjudication on this cause of action.
D. Age Discrimination
"[A] prima facie case of age discrimination arises when the employee shows (1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job, and (4) the employee was replaced in his position by a significantly younger person." (Hersant, supra, 57 Cal.App.4th at p. 1003; accord Sandell, supra, 188 Cal.App.4th at p. 321.)
This fourth element is not always an element of the plaintiff's prima facie case. (Hersant, supra, 57 Cal.App.4th at p. 1003, fn. 3.) Depending on the circumstances of the case, the plaintiff needs to show that "some other circumstance suggests discriminatory motive." (Guz, supra, 24 Cal.4th at p. 355.)
Hayes was 60 years old at the time of the reassignment, and the man who replaced her was 48 years old. Even assuming Hayes could establish a prima facie case of age discrimination, the District met its summary judgment burden by articulating a legitimate reason for the reassignment (as discussed previously) and presenting evidence of the successor principal's extensive qualifications. Thus, the burden shifted to Hayes to show that the reassignment was based on her age.
In seeking to make this showing in her appellate brief, Hayes says only that she "incorporates her response . . . in section (A)(2)" of her brief, which contains her arguments challenging the court's ruling on her retaliation cause of action. Because we have found that Hayes did not meet her burden to show the articulated reason for the reassignment was pretextual or otherwise discriminatory, we likewise find there is nothing in the record supporting that her age was a motivating factor in the reassignment. The fact that there was not a substantial age difference between the replacement principal and Hayes supports this conclusion.
III. Gender/Sexual Harassment
In addition to her FEHA discrimination claims, Hayes asserted a FEHA gender harassment cause of action on a theory of hostile work environment. As explained below, we conclude the court erred in granting summary adjudication on this cause of action.
The other theory of a FEHA sexual harassment claim, quid pro quo harassment, is not at issue here.
A. Distinction Between FEHA Discrimination and Harassment Claims
Hayes's FEHA discrimination and harassment causes of action contain some overlap, but the elements of each claim are different. (See § 12940, subds. (a), (h), (j).) The "FEHA's discrimination provision addresses only explicit changes in the 'terms, conditions, or privileges of employment' (§ 12940, subd. (a)); that is, changes involving some official action taken by the employer. [Citation.] In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action. [¶] By contrast, harassment often does not involve any official exercise of delegated power on behalf of the employer. . . . Thus, harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee." (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706 (Roby).)
Because a harasser need not exercise delegated power on the employer's behalf to engage in unlawful harassment, a harasser can be a supervisor, co-employee, or even a supervised employee. (Roby, supra, 47 Cal.4th at pp. 707-708.) When the harasser is a supervisor, the employer is strictly liable for the supervisor's actions. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041; Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313, fn. 7.) When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (i.e., the employer knew or should have known of the harassment and failed to take appropriate corrective action). (§ 12940, subd. (j)(1); Health Services, at p. 1041; Dickson, at p. 1313, fn. 7.)
B. Legal Standards of FEHA Gender Harassment Claims
To establish a hostile work environment sexual harassment claim under the FEHA, the plaintiff must show unwelcome conduct "because of sex" that was "sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 (Lyle).) The FEHA defines " 'harassment' because of sex" to include "gender harassment." (§ 12940, subd. (j)(4)(C); Lyle, at p. 277.)
To be actionable, the harassment " 'must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.' " (Lyle, supra, 38 Cal.4th at p. 284.) " ' "[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances [including] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." [Citation.]' . . . [¶] . . . ' "[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances.' " ' " (Id. at p. 283.)
Under the FEHA, harassment is actionable if it is pervasive or severe. (Lyle, supra, 38 Cal.4th at pp. 282-284; Harvill v. Westward Communs., L.L.C. (5th Cir. 2005) 433 F.3d 428, 434-435.) On the "pervasive" element, "an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. [Citations.] That is, when the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions. [Citations.] Moreover, when a plaintiff cannot point to a loss of tangible job benefits, she must make a ' "commensurately higher showing that the sexually harassing conduct was pervasive and destructive of the working environment." ' " (Lyle, supra, 38 Cal.4th at pp. 283-284.)
Lyle summarized this legal standard in its 2006 decision. In 2018, the Legislature amended the FEHA to include a statement of its intent that: "A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment," and expressly rejected inconsistent language in a Ninth Circuit opinion (Brooks v. City of San Mateo (2000) 229 F.3d 917). (Sen. Bill No. 1300 (2017-2018 Reg. Sess.) ch. 955, § 1.) We do not reach the issue regarding the extent to which this standard differs from Lyle's articulation of the standard. Under either rule, summary judgment was not appropriate on the factual record before us.
To satisfy the statutory standard based on alleged gender harassment, " 'it is "only necessary to show that gender is a substantial factor in the [unlawful harassment], and that if the plaintiff 'had been a man she would not have been treated in the same manner.' " [Citation.]' [Citations.] Accordingly, it is the disparate treatment of an employee on the basis of sex—not the mere discussion of sex or use of vulgar language—that is the essence of a sexual harassment claim." (Lyle, supra, 38 Cal.4th at p. 280; see Heyne v. Caruso (9th Cir.1995) 69 F.3d 1475, 1479 ["conduct tending to demonstrate hostility towards a certain group" relevant to show discrimination against an employee who is a member of that group].) Thus, offensive conduct that is not sex-specific may nevertheless violate the FEHA "if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees." (EEOC v. Nat'l Educ. Assn., Alaska (9th Cir. 2005) 422 F.3d 840, 842 (Alaska) [interpreting parallel federal Title VII provisions]; accord, Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 204 (Kelley); see Oncale v. Sundowner Offshore Servs., Inc. (1998) 523 U.S. 75, 80-81 (Oncale) [harassment can be established by presenting evidence of "discrepancies in how the alleged harasser treat[s] members of [each gender] in a mixed-[gender] workplace."].)
"[T]he issue of whether an employee was subjected to a hostile environment is ordinarily one of fact." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 264).) The Legislature recently confirmed this principle, stating "[h]arassment cases are rarely appropriate for disposition on summary judgment," and agreeing with the Nazir court that generally "hostile working environment cases involve issues 'not determinable on paper.' " (Sen. Bill No. 1300 (2017-2018 Reg. Sess.) § 1; accord, Davis v. Team Elec. Co. (9th Cir. 2008) 520 F.3d 1080, 1096 [if severity or pervasiveness of abuse is questionable, "it is more appropriate to leave the assessment to the fact-finder than for the court to decide the case on summary judgment"].)
C. Analysis
In moving for summary judgment, the District argued Hayes did not possess evidence showing she suffered severe or pervasive harassment based on her gender. In support, the District argued primarily that the claimed harassment was not actionable because it took the form of complaints about "work-related" issues, and not personal issues.
We agree that to the extent the harassment was based solely on the male teachers' complaints and disagreement with the manner in which Hayes was running the school and/or their desire to have her replaced with another administrator, the harassment was not unlawful. Harassment unconnected or unrelated to a protected category is not actionable under the FEHA. The FEHA does not prohibit all harassment in the workplace; the sexual harassment prohibition is directed only at harassment "because of . . . sex," defined to include gender. (§ 12940, subd. (j)(1), (4)(C); see Lyle, supra, 38 Cal.4th at pp. 279-282; Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1378.)
But this argument does not establish the District was entitled to prevail as a matter of law because Hayes presented facts from which reasonable inferences could be drawn that she was subjected to harassment because of her gender, i.e., that the male teachers treated her in a substantially abusive manner because she was female and that other males at the workplace were not similarly subject to abusive treatment.
Specifically, Hayes's evidence showed Ray harassed her numerous times from December 2013 through December 2014, and that the harassment was continuous and "ongoing." Hayes said in her declaration that the harassment included verbal harassment and harassment "via email with threats." When asked to explain the wrongful conduct, she said Ray would constantly raise frivolous challenges to her professional decisions in a belligerent manner, violate her specific directions and orders, question "every move [she] made," and "debate" every professional decision made in the best interest of the school. She said "most of the time [Ray] would make [his disagreements] public so that my staff heard it." She said, "It happened so many times, I can't even give you a number." Hayes said that Ray "stood above me and yelled at me" numerous times, and that she was afraid he was going to physically attack her. Hayes said that Steve also raised his voice at her. Hayes said she notified the District of the inappropriate behavior, including the yelling, but that this gender discrimination and harassment never stopped. Hayes said that Ray's "harassment towards me was so extreme and intolerable that it caused me severe anxiety, numerous sleepless nights, nausea, diarrhea, stomach pains, and great discomfort to even be near him."
Hayes's secretary, Tonya Elcome, likewise testified that one or more of the three male teachers "used intimidation, badgering, and belittling of me in my position," and "used direct attacks towards [Hayes] through me." Because the evidence showed Hayes was aware of this conduct, it is relevant to support Hayes's harassment claim. (See Lyle, supra, 38 Cal.4th at p. 284 ["plaintiff may be a victim of [gender harassment], even though it is not directed at her and instead is aimed at other women in the workplace," if plaintiff witnessed or was otherwise aware of the conduct].) Moreover, even if the conduct was not in Hayes's presence, evidence that other females in the workplace were subject to similar harassment is probative to prove the alleged harassment against the plaintiff occurred, that it was based on gender, and/or to show the harasser's motive or intent. (See Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 870-871; Pantoja v. Anton (2011) 198 Cal.App.4th 87, 115.) Elcome said she felt threatened by Ray, and heard Ray shouting at the police officers, saying he wanted Hayes arrested. When asked whether the conduct of the three male teachers affected her ability to perform her job, she said, "On several occasions . . . I've left work . . . because I couldn't deal, couldn't stop crying. And I'm a pretty strong person, but there's just been instances where you feel defeated, and I felt like I was under attack all the time and having to defend normal actions. It gets to you." She said that in response to complaints about the harassment, "nothing [was] being done by the [D]istrict."
Hayes also presented evidence that the harassment was based on her gender, an additional necessary element of the FEHA harassment cause of action. Hayes testified at her deposition that the Superintendent once told her the male teachers "probably wouldn't be treating me the way that they are if I had been a man, but because I'm a woman they think that they can get away with it." Hayes also presented evidence showing that Ray engaged in similar conduct toward other women employees, but did not similarly harass the male employees. Hayes testified, for example, Ray yelled only at women employees, but not male employees. Hayes also testified at her deposition that none of the male teachers similarly complained about Ray's conduct. (See Alaska, supra, 422 F.3d at p. 844 [" 'direct comparative evidence about how the alleged harasser treated members of both sexes' is always an available evidentiary route" to proving a harassment claim].)
Hayes also presented evidence that Ray and Steve had previously told her that she made "emotional decisions" because she was a woman and that she "was too touchy-feely with staff" because she was a woman. Although these statements were made before 2014 and thus are outside the one-year limitations period, they are relevant as evidence to show the later harassment was based on gender, i.e. that the male harassers believed Hayes was not adequately performing her job because she was a woman. (See Lyle, supra, 38 Cal.4th at p. 281 [evidence of hostile, sexist statements is relevant to show harassment "on the basis of sex"]; see also Oncale, supra, 523 U.S. at p. 80 [actionable hostile work environment may include harassment by the use of "sex-specific and derogatory terms . . . as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace"].) Additionally, evidence of these statements was potentially relevant under the continuing violation doctrine, as the comments can be viewed as reflecting a continuing pattern of events constituting the harassment. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 818-824.)
The record also supported that Hayes had specifically complained that the harassment was gender-based. The District's human resource director admitted in his declaration that Hayes had previously expressed to him "that she believed she and others were targeted due to their gender." Additionally, Hayes presented evidence that she complained about gender-based harassment during the January 2015 principal's meeting shortly after she told District officials she "couldn't take" the " 'harassment and abuse' " any longer. Hayes also said she complained about gender-harassment at her March 11, 2015 meeting with the Superintendent. Further, in her December 2013 email, Hayes noted that because Ray "never 'attacks' men," he might have a "sexist issue only with females."
Drawing all reasonable inferences in Hayes's favor, the evidence supported that one or more male teachers engaged in prohibited gender harassment. Viewed in isolation, many instances of the harassment were not severe. However, viewing the totality of the circumstances—including the lengthy time period during which the harassment occurred—the claimed conduct amounted to a pattern of verbal and psychological abuse that satisfied the definition of pervasive, actionable harassment under the FEHA. (See Davis, supra, 520 F.3d at p. 1095 [" '[t]he required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct' "].) The FEHA is not a " ' "civility code" ' " (Lyle, supra, 38 Cal.4th at p. 295), but it does protect against workplace conduct that subjects an employee to abusive conduct based on his or her gender. The fact that one or more male teachers harassed mainly the female employees, and not the male employees, together with Hayes's prior complaints of "gender" harassment and the male teachers' gender-derogatory comments, supports that the harassment was "because of" gender, and was not merely work-related behavior. (See Alaska, supra, 422 F.3d at p. 845 [evidence that "an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men" relevant to establishing gender harassment claim].)
On the record before us, Hayes presented sufficient evidence of gender harassment to satisfy her summary judgment burden under the FEHA. Whether a jury will ultimately make factual findings in her favor is not the issue here.
In arguing that Hayes's evidence did not establish severe or pervasive harassment, the District discusses the facts of other cases in which it says the reviewing courts declined to find actionable harassment. (See e.g. Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047, 1067 (Holmes); Young v. Exxon Mobil Corp. (2008) 168 Cal.App.4th 1467 (Young); Kelley, supra, 196 Cal.App.4th at pp. 197-201.) After reviewing these decisions, we do not find the facts and/or legal context comparable. The existence of unlawful harassment depends on the particular circumstances of the plaintiff, the harasser, the workplace, and the overall situation. " ' "[T]he objective severity of harassment" ' " must be " ' "judged from the perspective of a reasonable person in the plaintiff's position considering 'all the circumstances.' " ' " (Lyle, supra, 38 Cal.4th at p. 283.) In this case, Hayes presented evidence showing one or more male teachers badgered and belittled her for a lengthy period and that these teachers engaged in similar conduct against other female teachers, but not against male teachers. These circumstances are unlike those in Holmes, Young, and Kelley.
In Holmes, the plaintiff had worked for the defendant for less than three months during which there were a few mentions of the employee's pregnancy, but nothing rising to the level of a pattern of harassment. (Holmes, supra, 191 Cal.App.4th at p. 1060.)
In Young, the published portion of the opinion addressed only an attorney fees issue and the Court of Appeal did not discuss or evaluate the merits of the plaintiff's harassment claim. (Young, supra, 168 Cal.App.4th at pp. 1474-1477.)
In Kelley, the alleged harassment consisted of "graphic, vulgar, and sexually explicit language" used by a male construction worker to another male construction worker. (Kelley, supra, 196 Cal.App.4th at pp. 205, 197-201.) The Kelley court found no actionable harassment because the inappropriate language occurred only on one day; there was no showing the harassment was based on gender or sex; and there was no showing the conduct altered the conditions of the plaintiff's employment. (Id. at pp. 205-208.) Additionally, the Legislature recently disapproved of Kelley to the extent it was based on evidence that a "particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct." (Sen. Bill No. 1300 (2017-2018 Reg. Sess.) § 1.)
The District also argues strenuously that Hayes has not supported her harassment claim because the challenged incidents and actions were "work related" as they concern challenges only to "her job duties as principal." However, acts that appear to be job related can constitute unlawful harassment if they satisfy the other elements of the FEHA claim, i.e. if the work-related conduct masks pervasive gender harassment that effectively changed the conditions of the plaintiff's employment. (Roby, supra, 47 Cal.4th at pp. 708-710.) The fact that the harassment was intertwined with work-related issues does not, as a matter of law, preclude recovery for a FEHA sexual harassment claim. The point of the FEHA harassment prohibitions is to provide employees with a right to a workplace free of "hostile, offensive, oppressive, or intimidating" conduct based on a protected category and one that safeguards an individual's "emotional tranquility," "ability to perform the job," and "personal sense of well-being" while at work. (Sen. Bill No. 1300 (2017-2018 Reg. Sess.) ch. 955, § 1.) These policies are implicated regardless of the form in which harassment is manifested.
We find unavailing the District's reliance on Gathenji v. Autozoners, LLC (E.D. Cal. 2010) 703 F.Supp.2d 1017. In Gathenji, the plaintiff alleged his supervisor engaged in harassment based on the supervisor's personnel management decisions such as staffing choices and performance evaluations. (Id. at pp. 1032-1033.) The court held these job-related decisions reflected the employer's official acts, and thus could arguably support a discrimination claim, but not a claim for harassment. (Ibid.) The court reasoned that " '[h]arassment consists of a type of conduct not necessary to perform a supervisory job.' " (Id. at p. 1033; accord Roby, supra, 47 Cal.4th at p. 706; Reno v. Baird (1998) 18 Cal.4th 640, 646-647.)
Here, the acts of harassment by one or more male teachers were not similarly acts of the employer or a supervisor and do not reflect personnel management actions. The actions were outside the alleged harassers' scope of employment (as middle school teachers) and thus can support a harassment claim under the FEHA. Moreover, even assuming that challenging a principal's decisions and filing frivolous complaints against a principal are within the teachers' job duties, it was the demeaning and hostile manner in which these challenges were allegedly made and the fact that they were allegedly made only against females that constituted the alleged gender harassment and thus supported Hayes's FEHA harassment claim. (See Roby, supra, 47 Cal.4th at p. 709, fn. 10.)
The District also points to various portions of the record to support its position that the male teachers' behavior toward Hayes was not gender-based. For example, it notes (1) some male teachers were "unhappy" with Ray; (2) some women employees at the school site did not complain about Ray; (3) Ray filed complaints about Mueller and a law enforcement officer, both of whom were male; and (4) Hayes's own conduct triggered or justified the alleged harassment. They also assert that Hayes's own "actions cast doubt on whether she was actually offended and demonstrate a pattern of retaliatory behavior by Hayes."
Although these arguments may be persuasive to a factfinder, they do not as a matter of law negate Hayes's evidentiary showing in opposing the summary judgment motion.
IV. Failure-to-prevent Cause of Action
The FEHA makes it unlawful for an employer to "fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." (§ 12940, subd. (k).)
The court granted summary judgment on this claim based on its finding that the District was entitled to judgment on the underlying discrimination, retaliation, and harassment causes of action. (See Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1410 [actionable claim for failure to prevent discrimination or retaliation depends on a valid claim that the predicate conduct actually occurred]; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021.)
This ground no longer applies because we have found triable factual issues on the harassment cause of action. Further, the record contains evidence showing the District was aware of Hayes's complaints about the gender-based harassment occurring at her school site, but failed to take prompt remedial action. Hayes's evidence supports that the District took no reasonable actions to investigate and/or to prevent the harassment from continuing to occur. Contrary to the District's contention, the fact that it has formal policies and regulations prohibiting harassment does not preclude recovery if there is evidence the employer did not properly follow or implement those policies. (See Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 44.)
DISPOSITION
The court is ordered to vacate the judgment and summary judgment order, and to enter a new order: (1) denying the District's summary adjudication motion on the gender harassment and failure to prevent causes of action; and (2) granting the District's summary adjudication motion on the FEHA retaliation cause of action, the FEHA gender discrimination cause of action, and the FEHA age discrimination cause of action. The parties are to bear their own costs on appeal.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.